Prisoners’ and Victims’ Claims Act 2005, s 64 – meaning of ‘serving a sentence of imprisonment’ – approach to interpretation and statutory purpose – relationship between Parole Act 2002 regime and relevant provisions of Prisoners’ and Victims’ Claims Act
Van Silfhout v Pathirannehelage [2023] NZSC 148.
On 9 July 2010, Joshua van Silfhout committed an aggravated robbery of a service station where Udaya Pathirannehelage was working alone. He was subsequently arrested and remanded in custody on 30 January 2013. On 13 May 2014, van Silfhout was sentenced to four years and three months’ imprisonment. He was released on his sentence expiry date, 2 May 2017.
On 21 January 2020, the Department of Corrections agreed to pay van Silfhout $12,000 (including GST) compensation for an alleged breach of privacy. This money was paid into a trust account pursuant to the Prisoners’ and Victims’ Claims Act 2005 (Claims Act).
On 2 April 2020, Pathirannehelage made a claim to the Victims’ Special Claims Tribunal for compensation for emotional harm. The tribunal awarded him $5,000. The Secretary for Justice was directed to pay Pathirannehelage that sum from the amount held in trust.
Van Silfhout appealed the tribunal’s decision to the High Court, arguing that Pathirannehelage’s claim had been filed too late and was time-barred under the Limitation Act 1950.
Section 64 of the Claims Act suspends the six-year limitation period that would otherwise apply “while the offender is serving a sentence of imprisonment” for the offending giving rise to the claim “in a penal institution, prison, or service prison”. If the words “serving a sentence of imprisonment” include time spent in prison on remand, then Pathirannehelage’s claim was brought in time. If those words do not include pre-sentence detention, Pathirannehelage’s claim was out of time.
The High Court dismissed van Silfhout’s appeal. He was also unsuccessful in the Court of Appeal. Both courts found that the words “serving a sentence of imprisonment” included pre-sentence detention, relying on wording in the Parole Act 2002 about how “time served” under that Act is calculated.
The Supreme Court held the lower courts’ interpretation of s 64 was incorrect. An offender is a person who has been convicted of the relevant offence and had a sentence of imprisonment imposed, Ellen France J wrote for the court. The effect of s 64 is that, from the point after a sentence has been imposed, the limitation period is suspended for the purposes of a claim under the Prisoners’ and Victims’ Claims Act. This suggested a forward-looking, rather than a retrospective, approach as the Court of Appeal adopted.
The appellant and assisting counsel cited examples of arbitrary consequences under either of the interpretations advanced, Ellen France J said. But the most that could be inferred from them was that they only highlighted tensions apparent in the legislative scheme. “Our conclusion is that clearer words were necessary to strike the balance in the way in which the Court of Appeal has done. We consider s 90 applies for a specific purpose and does not change the prior character of remand time for the purposes of s 64.”
Observations
While Williams and Kós JJ agreed with the result, they made separate, additional observations on the effect of the legislation, which “has some peculiar consequences that might justify Parliamentary reconsideration”.
The limitation period continues to run against the victim where the defendant is incarcerated on remand until a sentence of imprisonment is imposed. The judges said this has some odd effects. The post-sentence period of imprisonment may be very short or last no time at all if the entire sentence was already time served. If so, the limitation clock “never stops”, despite the remanded prisoner, in substance, serving pre-emptively the sentence that is eventually imposed.
The judges also noted that the limitation period might run at different speeds in the cases of indistinguishable co-offenders, where the accused pleaded guilty to some victims and not guilty to others, or where multiple defendants pleaded differently in relation to offending against a single victim. “We see no good reason to distinguish between these differently situated victims for limitation purposes,” Williams and Kós JJ said.
Applicable principles: Prisoners’ and Victims’ Claims Act 2005, s 64 – meaning of “serving a sentence of imprisonment” – approach to interpretation and statutory purpose – was the Court of Appeal correct to treat the Parole Act regime as part and parcel of the relevant provisions of the Prisoners’ and Victims’ Claims Act?
Held: The appeal is allowed. The award of $5,000 to Pathirannehelage made by the Victims’ Special Claims Tribunal is set aside.
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